Analysis

Develop a pandemic jurisprudence to address needs of people in health emergency

Alok Kumar Yadav, Jivesh Jha and Nil Prasad Paneru 

As the worldwide death toll from COVID-19 mounts, an important argument that unfolds, of late, is about enacting a comprehensive code to deal with all issues connected with the pandemic.

The lockdown and quarantine measures have been crucial to contain the spread of the deadly virus. But the mere presence of quarantine laws is not the end of story. The nationwide lockdown, which is in place since March 24 in Nepal, to prevent the spread of virus has rendered several unskilled labourers and daily wage labourers jobless. The epidemic laws in India and Nepal offer rights to the government machineries to restrict the movement of the people, goods, services or modes of transport.

Nevertheless, the legal regimes fail to lay down the duties of the government. An employee or daily wage earner is neither entitled to receive payments by way of compensation for loss of earnings, nor can migrant workers or stranded persons claim foodstuffs as a matter of right under the current scheme of law. A victim of COVID-19 cannot claim compensation from the state in India or Nepal.

Still, Article 36 of the Constitution of Nepal provides right on every citizen to be protected from a state of starvation, resulting from lack of foodstuffs. However, in England, a victim of the deadly virus is entitled to claim compensation from the government under the scheme of the Coronavirus Act, 2020.

Along these lines, it bears relevance to acknowledge the greeting message of the Chief Justice of Nepal Cholendra SJB Rana that was issued on the eve of Law Day on May 8. The Chief Justice has underscored the need of evolving a pandemic jurisprudence to address the concerns of people during health emergency-like situations. In fact, a pandemic leaves its impact for a long time until a vaccine arrives. In case of current COVID-19 outbreak, countries across the globe are suffering from financial crisis due to quarantine laws and lockdown measures put in place (to curb the transmission of the virus). The daily wagers and people working in unorganized sectors walked home to escape hunger and insecurity. In India, millions of poor and needy citizens were reportedly seen heading to villages on foot in absence of public transport.

Unfortunately, many have lost their jobs and many others are at the verge of losing the employment due to COVID-19 pandemic. The International Labour Organization (ILO) in its latest report said, “No matter where in the world or in which sector, the crisis is having a dramatic impact on the world’s workforce.” It further said, in absence of appropriate policy measures, workers face high risk of falling into poverty and will experience greater challenges in regaining their livelihoods during the recovery period. Almost 25 million jobs could be lost worldwide as a result of COVID-19.

This would lead to suspension of fundamental rights relating to employment, work and trade and commerce. Right to work has been recognized by the internationally binding instruments. Article 23 of Universal Declaration of Human Rights (UDHR), 1948 envisages that everyone has the right to work, free choice of employment, just and favourable conditions of work and protection against unemployment. This provision not only protects the right to work, but also obligates states to provide the right to compensation while unemployed. Article 6 of International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 is also worded in almost similar terms. Under current legal regime in India and Nepal, an employee, unorganized worker or daily wager is not entitled to invoke writ jurisdiction to seek compensation at the instance of loss of earning due to natural or manmade disaster.

In these contexts, India and Nepal need to think of a clear, unambiguous and well-articulated plans and policies on what should be done during pandemic or health emergency-like situations in future. The republics have stringent penal provisions to deal with infectious diseases. For instance, Section 104 of Country Criminal Code, 2074 (BS) which envisages for up to 10 years of jail sentence and a fine of up to 100,000/- against a person who intentionally spreads or cause to spread infectious diseases.

The provision also allows the judicial department to impose jail sentence of up to five years and fine of up to 50,000/-on a reckless person and up to three years of imprisonment and a fine of up to 30,000/- on negligent ones who indulges in spreading the infectious diseases. But, the mere stringent penal provision cannot succeed to address entire dynamics associated with pandemics. A welfare state deserves to promulgate a law that lays down a mandatory duty of the state instruments towards the vulnerable citizens and victims of infectious diseases during outbreak of pandemic.

The governments should be more liberal about allocating budgets to rescue the vulnerable population facing poverty due to loss of earning. The dissenting voices in public spaces are enough to conclude that government’s support have not been enough or their policies failed to intervene much. India introduced an ordinance to address the grievances of doctors.

The Indian Medical Association on April 20 said that it would observe a ‘Black Day’ on April 23 if the government does not adopt a central law on violence against healthcare workers. In its response, the Narendra Modi government on April 22 brought an ordinance (to amend Epidemic Act, 1897) that makes attack on doctors, paramedics or nurses a non-bailable and cognizable offence punishable from six months to up to seven years in prison and fine of up to Rs 500,000/-. This law envisages that the police shall investigate the case within 30 days and the case shall be fast tracked with the final judgment to come within a year. Also, the persons found vandalizing the private clinic or a car belonging to a doctor will be asked to pay twice. Notably, several healthcare workers in India have been attacked at different locations as they battle to stop the spread of Coronavirus. Still, the ordinance may become ineffective after the pandemic is declared over. The government at the helm should assure that those who attack healthcare workers would be dealt strictly in future too.

 

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Take the example of England here.  The Coronavirus Act, 2020 casts an obligation on the state to increase the manpower in health and social care sectors. Sections 2-7 and their incidental Schedules provide for the emergency temporary registration of various regulated healthcare professionals and social workers for the duration of the emergency. Sections 11 to 13 of the Act provide indemnity against clinical negligence claims for healthcare professionals assisting in the response to the outbreak, who would not otherwise be so indemnified. Section 9 makes arrangement for the compensation to emergency volunteers who may have incurred loss of earnings or for travel and subsistence. Its a comprehensive legislation addressing the issues connected with COVID-19 including emergency registration of healthcare professionals, temporary suspension of schools and colleges, court proceedings through audio-visual, power to restrict gatherings or compensate the industries facing loss due to outbreak and quarantine measures in force.

This legal arrangement gives a message that there should be coherence between rights of the citizens and duties of the government towards her subjects in a welfare state.

These unprecedented circumstances call for the development of a pandemic jurisprudence that would lay down strong and vibrant legislative leadership; coordination and cooperation between centre and provinces; and proactive policy to authorize the government to revive economy, education, and healthcare sectors. After all, lack of requisite diligence and responsiveness of the government in expediting welfare functions cannot be tolerated in welfare states. There is a dire need of evolving a pandemic jurisprudence to strike a balance between the rights of the persons—natural and juristic persons—and duties of the state during an outbreak. It’s high time to understand that extraordinary measures must be adopted to address extraordinary situations.

Yadav is Assistant professor of Law at HNB Garhwal Central University, Shrinagar, India  and Jha and Paneru are Judicial Officers with Janakpur High Court, Birgunj Bench.  

Published on May 10, 2020

 

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